Appeal
from an order of the Family Court of Albany County (M. Walsh,
J.), entered September 7, 2016, which, in a proceeding
pursuant to Family Ct Act article 6, granted motions by
respondent Daysha C. Moore and the attorney for the child to
dismiss the petition.

Petitioner
(hereinafter the father) and respondent Daysha C. Moore
(hereinafter the mother) are the unmarried parents of a son
(born in 2008), and respondent Jacqueline S. Moore
(hereinafter the grandmother) is the child's maternal
grandmother. The parties entered into a consent order in 2013
that awarded joint legal custody of the child to the father,
the mother and the grandmother and primarily placed him with
the grandmother. In May 2016, the father, who was
incarcerated at all relevant times, filed a pro se
modification petition seeking sole legal custody of the child
and physical placement with the paternal grandparents. The
mother and the attorney for the child separately moved to
dismiss the petition due to the father's failure to
allege the requisite change in circumstances, and the
grandmother supported their arguments. Family Court granted
the motions to dismiss, and this appeal by the father ensued.

The
threshold issue in a custody modification proceeding between
parents is whether a change in circumstances has occurred
since the entry of the prior custody order that would warrant
revisiting the custody arrangement to ensure the best
interests of the child (see Matter of Horowitz v
Horowitz, 154 A.D.3d 1207, 1207 [2017]; Matter of
William O. v John A., 148 A.D.3d 1258, 1259 [2017],
lv denied29 N.Y.3d 908');">29 N.Y.3d 908 [2017]; Matter of Dumond
v Ingraham, 129 A.D.3d 1131, 1132-1133 [2015]). This, in
contrast, is the father's effort to alter a custody
arrangement involving a nonparent, and he "has a claim
of custody of his... child, superior to that of [the
nonparent], in the absence of surrender, abandonment,
persistent neglect, unfitness, disruption of custody over an
extended period of time or other extraordinary
circumstances" (Matter of Curless v McLarney,
125 A.D.3d 1193, 1195 [2015] [internal quotation marks and
citations omitted]; accord Matter of Rumpff v
Schorpp, 133 A.D.3d 1109, 1110 [2015]). Therefore,
absent a finding of extraordinary circumstances, the father
was "not required to prove a change in circumstances as
a threshold matter" (Matter of Dumond v
Ingraham, 129 A.D.3d at 1132-1133; see Matter of
Christy T. v Diana T., 156 A.D.3d 1159, 1160 [2017];
Matter of Rumpff v Schorpp, 133 A.D.3d at 1110).

Family
Court did not make a finding of extraordinary circumstances
in the appealed-from order. The 2013 consent order is absent
from the record, but we take judicial notice that it
contained "neither a judicial finding nor an admission
of extraordinary circumstances" (Matter of Rumpff v
Schorpp, 133 A.D.3d at 1110; cf. Matter of Catherine
A. v Susan A., 155 A.D.3d 1360, 1361-1362 [2017]). The
issue of extraordinary circumstances may well have been
addressed at the court appearance where the parties agreed to
the terms of the 2013 order but, because a transcript of that
appearance is not included in the record, we cannot be
certain of that. However, this Court can review the record
and make a finding of extraordinary circumstances "upon
an adequately developed record" (Matter of Ramos v
Ramos, 75 A.D.3d 1008, 1010 [2010]; see Matter of
Gunther v Brown, 148 A.D.3d 889, 890 [2017]). The
incarcerated father consented to the 2013 order that placed
the child in the grandmother's care, the child has
remained there and, despite complaining that he has not had
input into significant decisions regarding the child's
care, the father waited three years before filing the present
petition to seek a greater custodial role. There has
accordingly been an extended disruption of custody that
warrants a finding of extraordinary circumstances
(see Domestic Relations Law § 72 [2] [a];
Matter of William O. v Wanda A., 151 A.D.3d 1189,
1191 [2017], lv denied30 N.Y.3d 902');">30 N.Y.3d 902 [2017];
Matter of Donna SS. v. Amy TT., 149 A.D.3d 1211,
1213 [2017]).

Extraordinary
circumstances being present, the question turns to whether
the father articulated the requisite change in circumstances
since the entry of the 2013 order. While "[a] petition
filed by a pro se litigant should be construed liberally when
considering whether it sufficiently allege[s] a change in
circumstances" (Matter of Horowitz v Horowtiz,
154 A.D.3d at 1207-1208), a modification petition must still
"allege facts which, if established, would afford a
basis for relief and the party seeking such a modification
must make a sufficient evidentiary showing in order to
warrant a hearing" (Matter of William O. v John
A., 148 A.D.3d at 1259 [internal quotation marks and
citations omitted]; see Matter of Hayes v Hayes, 128
A.D.3d 1284, 1285 [2015]; Matter of Audrey K. v Carolyn
L., 294 A.D.2d 624, 624 [2002]). The father failed to
make such a showing here.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
father filed his modification petition seeking sole custody
two years prior to his conditional release date from prison,
and his incarceration prevents him from taking physical
custody of the child. "Although a parent&#39;s
incarceration, standing alone, is not a sufficient basis upon
which to deny visitation, " we find no abuse of
discretion in Family Court&#39;s dismissal of the petition
for sole custody without prejudice to the father filing a new
petition seeking the same relief as his release from prison
draws nearer (Matter of Randy K. v Evelyn ZZ., ...

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